N.C. Loses Redistricting Battle, But Fight Far From Over

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By Kimberly Strawbridge Robinson

Democrats scored a victory as the U.S. Supreme Court struck down two North Carolina congressional districts May 22 ( Cooper v. Harris , U.S., No. 15-1262, 5/22/17 ).

By setting an explicit “racial target” and packing black voters into individual districts, the state unconstitutionally considered race when drawing its federal voting maps, the court said.

All justices agreed that that was the case with one congressional district, District 1. But only five justices, made up of the court’s liberal wing and Justice Clarence Thomas, thought the state unconstitutionally gerrymandered another district—District 12—too.

This means the court-ordered redrawn districts will remain intact, at least for now. They, too, face challenges as unconstitutional partisan gerrymanders, where the state considers politics too much in drawing district lines.

The decision “will likely limit some of the evidence that legislatures may consider in redistricting,” Derek Muller, an election law professor at Pepperdine University School of Law, Malibu, Calif., told Bloomberg BNA in a May 22 email. If “legislatures stop using race as a proxy for party” affiliation, at least overtly and on the record, then lingering issues related to partisan gerrymandering could “come to a head,” Muller said.

Indeed, the plaintiffs challenging the maps here have already asked the Supreme Court to review the map that was drawn after a lower court threw out this map as an unconstitutional racial gerrymander. The state merely replaced an unconstitutional racial gerrymander with an unconstitutional partisan gerrymander, the petitioners said in No. 16-166, Harris v. Cooper.

Moreover, the decision could end up hurting both Democratic and black voters in the end, John J. Park Jr., of Strickland Brockington Lewis LLP, Atlanta, told Bloomberg BNA. Park, who has defended Alabama against similar redistricting challenges, filed an amicus brief in support of North Carolina.

‘Inherently Murky’

States can consider race when redistricting, the court said. They just can’t make it the “predominant” factor.

But determining whether race was the predominant factor is always a difficult task, Daniel Tokaji, an election law professor at Ohio State University’s Moritz College of Law, Columbus, Ohio, told Bloomberg BNA May 22. Judges can look at the same evidence of racial intent and come to opposite conclusions.

In fact, here, state and federal courts came to different conclusions about whether race predominated in the very same districts.

That’s because the standard is so “inherently murky,” Tokaji said.

“The Supreme Court says race can be a factor in redistricting but not the predominant factor, a rule that is so vague, so broad, and so lacking in a definable legal standard that it is not really a rule at all,” Hans von Spakovsky, of the conservative Heritage Foundation, said in a May 22 statement emailed to Bloomberg BNA.

‘Packing’ Unnecessary

Despite that murky standard, all eight justices in today’s redistricting dispute—newly confirmed Justice Neil M. Gorsuch didn’t participate in the case—agreed that the state’s use of race in District 1 was unconstitutional.

“Uncontested evidence in the record shows that the State’s mapmakers, in considering District 1, purposefully established a racial target: African-Americans should make up no less than a majority of the voting-age population,” the court said.

That resulted in “packing” black voters into the district, it said.

Moreover, that packing couldn’t be justified by pointing to the Voting Rights Act, the court said. Electoral history showed that such packing wasn’t necessary to ensure that black voters could elect their candidates of choice, as required under the VRA, the court said.

In the “ closest election” over the past two decades, “African-Americans’ candidate of choice received 59% of the total vote; in other years, the share of the vote garnered by those candidates rose to as much as 70%,” the court said.

Scratching Head

Over time, the decision has the potential to actually harm black and Democratic voters, Park said.

The states have to undergo redistricting every ten years, so North Carolina will be going through this process again in 2020, he said.

But the case law in this area is so unclear that Park said he’s scratching his head about what will happen in 2020.

It’s likely that more voters will have to be moved in and out of these districts to comply with the one-person, one-vote requirement—the idea that districts must be equally populated to ensure voters have equal voting power.

After this decision, states can’t pull in more black, typically Democratic, voters, Park said. So they can either pull in white Democratic voters, or white Republican voters, Park said. If its the latter, then over time, the political demographics within the district could shift, he said.

Race Versus Party

Changing demographics could affect both Districts 1 and 12, which have long been Democratic-held districts.

Though the justices agreed over District 1, they were split 5-3 over District 12. This is the “fifth(!)" time that district has been challenged in the Supreme Court since 1991, the court said.

The predominant purpose in drawing District 12 this time around wasn’t race, but instead party, the state claimed. The state’s Republican majority, which was responsible for drawing the new voting maps at issue, wanted to draw districts favorable to Republicans, they argued.

That resulted in packing black voters into districts because race and party are highly correlated, they claimed.

But the lower court didn’t agree. It said race, not party, was the predominant factor.

The majority emphasized the deferential view the Supreme Court must take of the lower court’s findings. The high court can only reverse for “clear error.” Under that standard, the court can’t reverse just because it would have decided the matter differently, the court said. Instead, reversal is allowed only if it is “‘left with the definite and firm conviction that a mistake has been committed,’” it said, quoting a previous case.

The testimony at trial “adequately supports” that finding and “no error of law infected” the lower court’s judgment, the majority said.

Throw Up Hands

Nor did the plaintiffs challenging the maps have to put forth an alternative map that would meet the state’s political goals without offending the racial limitations, the court said.

But Justice Samuel A. Alito Jr. wrote in dissent that it was required, by Easley v. Cromartie. Cromartie II, as that case is known, is one of the previous challenges to the embattled District 12.

The majority countered that such a map wasn’t required, but could be helpful in proving that race, not party, predominated.

Tokaji said he’s not sure who’s right about Cromartie II.

“It might be a little of both,” Muller said. “The majority rightly understands Cromartie II as fairly deferential to the lower court’s findings,” Muller said. “But the dissent is right that Cromartie II used language suggesting that the plaintiffs needed to introduce an alternative map as a necessary precondition to winning.”

It really makes you throw up your hands, Tokaji said.

Next Battle

But Tokaji also said that the problems with these standards should make the court wary of adopting similarly murky standards for partisan gerrymandering.

The Supreme Court has said that partisan gerrymandering can be unconstitutional. But it hasn’t been able to come up with a manageable standard to measure when consideration of politics crosses the line.

But racial gerrymandering and partisan gerrymandering are often intertwined. “This case is, in a way, a partisan gerrymandering case with a favorable evidentiary record to permit plaintiffs to win on a racial gerrymandering theory,” Muller said.

In response to the lower court’s ruling striking down the voting maps here, North Carolina redrew its congressional maps last year.

“Sadly, state lawmakers responded to rulings against their unconstitutional racial gerrymandering by then gerrymandering along partisan lines,” Bob Phillips, of Common Cause, Raleigh, N.C., said in a statement emailed to Bloomberg BNA May 22.

“Common Cause is among the plaintiffs challenging the NC legislature’s partisan gerrymandering scheme in the case of Common Cause v. Rucho,” the statement said. “That potentially landmark trial is set to begin on June 26 in Greensboro.”

Even before that, the Supreme Court could agree to take up partisan gerrymandering. In addition to the North Carolina petition requesting the court to look at partisan gerrymandering, Wisconsin is asking the high court to take a look at a lower court ruling striking down its voting maps for being drawn based on political party. The justices will likely discuss whether to hear that case, Gill v. Whitford, June 15.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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